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To: Judge Huck Case 1:07-cv-22693-PCH Document 157 Entered on FLSD Docket 01/05/09 17:56:43 Page 1 of 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 07-22693-CIV-HUCK/O’SULLIVAN MIGUEL ANGEL SANCHEZ OSORIO, et al., Plaintiffs, vs. DOLE FOOD COMPANY, a Delaware Corporation; THE DOW CHEMICAL COMPANY, a Delaware Corporation; OCCIDENTAL CHEMICAL CORPORATION, a New York Corporation; SHELL OIL COMPANY, a Delaware Corporation, Defendants. _______________________________________/ ORDER ON CHEMICAL COMPANY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT BASED ON TRADITIONAL PERSONAL JURISDICTION DEFENSES Plaintiffs seek the recognition and enforcement of a Nicaraguan judgment. On February 2, 2002, Plaintiffs, former banana workers in Chinandega, Nicaragua, filed a lawsuit in the Second Civil District Court for Chinandega, Nicaragua (the “Nicaraguan Court”), asserting claims for personal injury against several defendants, including The Dow Chemical Company (“Dow”), Occidental Chemical Corporation (“Occidental”) and Shell Oil Company (“Shell”) (collectively, the “Chemical Company Defendants”).1 The foreign judgment they seek to recognize was issued on August 8, 2005 by the Nicaraguan Court in the amount of $97,398,060.00 in favor of the Plaintiffs (the “Nicaraguan Judgment”).2 The Chemical Company Defendants have each filed motions to for summary judgment based on a lack of personal jurisdiction over them by the Nicaraguan Court. Because this Court finds that the Nicaraguan Court lacked personal jurisdiction over Defendants Occidental and Shell, Defendants Occidental and Shell’s Motions for Summary 1 The Dole Food Company is also a defendant in this case, but has not moved for summary judgment based on lack of personal jurisdiction by the Nicaraguan Court. 2 The parties dispute whether the judgment entered in the Nicaraguan Court was a final, conclusive and enforceable judgment for reasons other than personal jurisdiction. This opinion will respond only to the parties’ arguments that the judgment is not enforceable based on a lack of personal jurisdiction over the parties by the Nicaraguan court. 1 Case 1:07-cv-22693-PCH Document 157 Entered on FLSD Docket 01/05/09 17:56:43 Page 2 of 23 Judgment based on Lack of Personal Jurisdiction [D.E. #65 and 68] are granted. Because this Court finds that the Nicaraguan Court properly exercised personal jurisdiction over Dow, Dow’s Motion for Summary Judgment based on Lack of Personal Jurisdiction [D.E.# 63] is denied. I. Procedural Posture On August 13, 2007, Plaintiffs filed a complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 07-25521-CA-04, seeking recognition and enforcement of the Nicaraguan Judgment pursuant to Florida’s Uniform Out-of-Country Foreign Money- Judgment Recognition Act, Fla. Stat. §§55.601, et seq. (“Recognition Act”). The Recognition Act permits a plaintiff to enforce any foreign monetary judgment that is “final and conclusive and enforceable where rendered.” Fla. Stat. § 55.603. The foreign judgment, however, is unenforceable if the foreign court lacked personal jurisdiction over the defendant. Fla. Stat. § 55.605(1)(b). On October 12, 2007, this case was timely removed from state court based on diversity jurisdiction. On January 31, 2008, this Court ruled that it would first consider summary judgment on the threshold question of whether the Nicaraguan Court had personal jurisdiction over the Chemical Company Defendants. Subsequently, Dow, Occidental and Shell each moved for summary judgment based on lack of personal jurisdiction over them by the Nicaraguan Court.3 This matter has now been fully briefed. II. Background The underlying case in this action for enforcement of a foreign judgment was filed in Nicaragua in February 2002 by 201 banana plantation workers allegedly injured by a pesticide called 1,2 –Dibromo-3-chloropropane, commonly referred to as “DBCP,” which was designed to control nematode infestation of certain crops, including bananas. Specifically, Plaintiffs alleged that they suffered irreversible physical injury and psychological damages, including partial or total sterility, gastrointestinal edema, kidney problems, emotional distress, sorrow and loss of consortium as a result of prolonged exposure to DBCP during the years 1970 to 1982 at various banana plantations throughout the Chinandega area of Nicaragua. Compl., ¶9. A. DBCP The Chemical Company Defendants all manufactured DBCP in the 1970’s. Dow Statement of Facts (“Dow SOF”), ¶5, Shell Statement of Facts, (“Shell SOF”), ¶1, Occidental Statement of 3 Subsequently, the parties have filed cross-motions for summary judgments on other grounds, which motions are not addressed in this opinion. 2 Case 1:07-cv-22693-PCH Document 157 Entered on FLSD Docket 01/05/09 17:56:43 Page 3 of 23 Facts (“Occ SOF”), ¶2. Toxicological studies performed by Dow and Shell in the late 1950’s through 1961 demonstrated that DBCP had harmful effects on laboratory animals. Sanchez Osorio, et al., Statement of Additional Facts (“Sanchez Osorio SOAF”), ¶2-3 citing Exhs. 1-4, Exh. 6 and Exh. 46. In 1961, Dow and the University of California published a study of DBCP effects in Toxicology and Applied Pharmacology. Sanchez Osorio SOAF, ¶5 citing to Exh.8. The report described the harmful effects to laboratory animals, including damage to kidneys and testes, and recommended that the concentration of DBCP be “kept below 1 ppm if repeated, prolonged exposure is likely,” and that “[u]ntil further experience is obtained, close observation of the health of people exposed to this compound should be maintained.” Id. At that time, the U.S. Department of Agriculture proposed stringent labeling requirements and requested information regarding health records of individuals exposed to DBCP for extended periods of time. Sanchez Osorio SOAF, ¶6. DBCP was applied on banana plantations in Nicaragua in the 1970’s. Sanchez Osorio SOAF, Exh. 41, p.229. On September 8, 1977, after reports of sterility of some workers at Occidental’s factory, the U.S. Environmental Protection Agency (“EPA”) issued an initial, conditional suspension of registrations of DBCP products based upon “recently disclosed information showing that male chemical plant workers exposed to relatively low levels of DBCP have become sterile.” Sanchez Osorio SOAF, ¶19 citing Exh. 22. The EPA issued its order suspending the registration of DBCP products for 19 specific crops on October 27, 1977. Sanchez Osorio SOAF, ¶21 citing to Exh. 40. Relief from the suspension was possible if an applicant submitted an amended registration that provided for restricted use by certified applicators wearing protective clothing and respirators. Sanchez Osorio SOAF, ¶21 citing Exh. 22. Two years later, on October 29, 1979, the EPA unconditionally suspended the use of all pesticide products containing DBCP and prohibited the further sale, use or distribution of pesticides containing DBCP in the United States. Sanchez Osorio SOAF, ¶23 citing Exh. 40. B. Nicaraguan Proceeding Plaintiffs filed an action for personal injury resulting from the use of DBCP pesticides in Nicaragua in August 2002. The lawsuit was brought pursuant to Nicaraguan Special Law No. 364, formally titled, “Special Law to Prosecute Lawsuits Filed by People Affected by the Use of Pesticides Manufactured with DBCP” (“Special Law 364”). Compl., ¶10. On May 16, 2005, following a request by Plaintiffs for appointment of common counsel for the Defendants, the Nicaraguan Court appointed counsel for the Defendants. Compl., ¶13. The Chemical Company Defendants each state that they did not request or accept the representation of the court appointed 3 Case 1:07-cv-22693-PCH Document 157 Entered on FLSD Docket 01/05/09 17:56:43 Page 4 of 23 common counsel and, in contrast, that each sent its own counsel to the Nicaraguan Court solely for the purpose of contesting jurisdiction. The Nicaraguan Court entered judgment in favor of 150 plaintiffs against the Defendants named in this case for a total of $97,398,060.00 on August 8, 2005. Five other defendants were found not liable and fifty-one plaintiffs were awarded no recovery. III. Standard for Summary Judgment Summary judgment shall be granted if the pleadings, discovery and disclosure materials on file, together with any affidavits show that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “material” if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. See Allen, 121 F.3d at 646. On a motion for summary judgment, all evidence must be viewed in the light most favorable to the non-moving party to determine whether that evidence could reasonably sustain a jury verdict. Id. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970), Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). When the movant has satisfied his initial burden under Rule 56©, the burden shifts to the opposing party to present affirmative evidence demonstrating that there is indeed a material issue of fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). A mere “scintilla” of evidence in favor of the non-moving party, or evidence that is “merely colorable or not significantly probative,” is not enough.
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